The battle over the fate of Vermont Yankee

BRATTLEBORO -- For supporters of Vermont Yankee, 2012 started off on a bright note when a federal district judge ruled the Vermont Legislature acted outside of its own authority when in 2011 it forbade the continued operation nuclear power plant in Vernon past March 21, 2012.

The judge's decision came down in favor of Entergy, owner and operator of the plant, which contended that the Legislature had considered the safety of the power plant when it drafted legislation giving itself power over the fate of Yankee. The judge ruled safety is under the sole purview of the Nuclear Regulatory Commission, however, he also concluded that the Vermont Public Service Board still has the authority to review whether the power plant should receive a certificate of public good for continued operation. So while the plant received a new license from the NRC in March 2011, it still needs a CPG from the state to replace the one that expired in March 2012.

The PSB told Entergy it could continue to operate on the old CPG, and reopened its review of the application for a new certificate. At the same time, the board informed Entergy that it is operating in violation of board orders that require a current CPG. The board's schedule calls for a decision sometime after August 2013.

Meanwhile, the state appealed the district court's decision and oral arguments are due to commence later this month. Following the federal court's decision, Entergy filed with the court, asking it to force Vermont to reimburse Entergy more than $4.

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62 million for its legal expenses. That petition is on hold while the appellate court reviews the district court's decision. (A little-known fact: Kathleen Sullivan, who is representing Entergy, is also representing Shell Petroleum before the U.S. Supreme Court. Shell Oil is being sued under the Alien Torte Statute by 12 Nigerians, accused of conspiring with the Nigerian government in the torture and killing of people who were opposed to the exploitation of their land for oil exploration.)

In addition, the New England Coalition filed a petition with the Vermont Supreme Court asking it to force the plant to shut down because Entergy is in violation of Condition 8 of the sale agreement that was approved in 2002 when Entergy purchased the plant. The condition says Entergy must have in hand a new CPG to continue operating the plant and NEC is contending the sale agreement is separate from the order that issued the now-expired certificate, therefore, Entergy is in violation of a state order, which means the plant should not be operating. The Supreme Court is expected to take testimony on NEC's petition later this month.

In response, Entergy filed a complaint with the federal appeals court asking it to toss NEC's petition. Several weeks later it also filed a similar motion with the Vermont Supreme Court.

Also, in early 2012, Central Vermont Public Service and Green Mountain Power filed suit against Entergy seeking to recover costs resulting from cooling tower failures that occurred at Yankee in 2007 and 2008. Discovery is still being taken in that case.

The state received a major blow in July 2012 when a federal court in Washington, D.C., threw out its suit against the NRC, in which Vermont contended the license application approved by the NRC was incomplete because it didn't include a current water quality certificate as mandated by the Environmental Protection Agency. The court ruled the state had a number of opportunities prior to the relicensing approval to raise its concerns about the water quality certificate.

A long line of demonstrators march up Putney Road in Brattleboro in an anti Vermont Yankee protest in March, 2012, which culminated with demonstrations at Entergy Vermont Yankee's Joint Information Center on Old Ferry Road. (Zachary P. Stephens/Reformer)

Because it did not "exhaust its administrative remedies" prior to filing suit, the state had no standing to bring a complaint, ruled the court.

In another legal battle, Entergy has filed a federal lawsuit against the state contending the state violated the U.S. Constitution when legislation was passed that increased the revenue generation tax that Entergy pays from $5 million to $12.5 million a year.

Protests against Yankee's continued operation were held at the plant and at Entergy's headquarters on Ferry Road in Brattleboro. On March 21, about 65 people, including about one dozen Buddhist monks, protested at the gates of the plant in Vernon. The next day, more than 1,000 people marched from the Brattleboro Common to the Ferry Road location, calling for the plant's closure. About 130 of them were arrested for trespassing. Two days after that, another 80 people, members of Nuke Free Monadnock, protested at the gates of the plant.

In September, a "flotilla" on the Connecticut River was organized, with about 125 anti-nuclear activists taking to various forms of watercraft to protest the plant's thermal discharge.

A number of women who have regularly protested at the gates and been arrested a number of times finally had their day in court in November. After a trial that took one day, the six women were found guilty by a jury and were fined $350 each for trespassing. The women said they won't be paying the fine and that they would soon once again protest at the gates of the plant.

The Connecticut River Watershed Council issued a new report that concluded the formula Entergy uses to determine the impact on aquatic life by Yankee's thermal discharge into the river is inadequate.

The plant is currently operating under a discharge permit that expired in 2001. The state's review of the permit has been held up by court proceedings and by the EPA, which has been updating its rules related to water quality permits and the utilization of the best available technology to minimize the impact on the environment. It's unknown when the Vermont Agency of Natural Resources will rule on whether Entergy should receive a new permit or what conditions might be attached to any new permit.

In June, long-time Yankee spokesman Larry Smith retired from his position and moved to Florida.

In October, Entergy wrapped up its testing of groundwater at the plant that was initiated after a discovery of a leak of tritiated water in January 2010.

The Red Cross chapter responsible for organizing the relocation of people out of the 10-mile evacuation zone in case of an accident told Vermont Emergency Management it needs more than $700,000 to update its plan.

In November, the Public Service Board took testimony on the plant's continued operation. The majority of the crowd was there to voice support for Yankee.

On tap for 2013: The federal appeals court in New York City will take oral arguments on Jan. 14 on Vermont's appeal of the district court's ruling; the Vermont Supreme Court will discuss on Jan. 16 NEC's request for a shutdown; the next day, the Public Service Board will start its hearings on whether Entergy should be allowed to install a new diesel generator for back-up power at the plant; and the board will also continue to take testimony and evidence in its review of Entergy's CPG application.

Bob Audette can be reached at raudette@reformer.com, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.

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